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Financial Services Law Insights and Observations

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  • FinCEN Issues Statement On Providing Banking Services to Money Services Businesses

    Fintech

    On November 10, FinCEN released a statement to reiterate that banking organizations can serve Money Services Businesses (MSB) while meeting obligations under the Bank Secrecy Act. FinCEN noted that there is concern that banks may be terminating the accounts of MSBs on a wholesale basis because of potential regulatory scrutiny and that as a result MSBs are losing access to banking services. FinCEN stated that they do “not support the wholesale termination of MSB accounts without regard to the risks presented or the bank’s ability to manage the risk.” Rather, the risks presented by a given MSB can vary and, therefore, financial institutions should assess the risks on a case-by-case basis. FinCEN expects that banking organizations will manage the risks associated with MSB accounts and are committed to addressing the “wholesale de-banking of an important part of the financial system.”

    FinCEN Bank Secrecy Act Money Service / Money Transmitters

  • Department Of Treasury Continues Work To Support Money Transmitters

    Fintech

    On October 8, the Treasury released a statement regarding its continued efforts to support the legitimate use of money transmitters by fostering financial inclusion and financial transparency, while simultaneously addressing its vulnerabilities of money laundering and terrorist financing. Highlighting its progress in the last 15 years, the statement notes that “record volumes of remittances are being transmitted through legitimate and transparent channels.” Looking forward, the treasury will improve upon its efforts to increase banking access for money transmitters by (i) making its expectations for banks clearer; (ii) improving AML/CFT controls and compliance; (iii) heightening AMC/CFT oversight; and (iv) reaching out to financial institutions and their customers. Finally, the Treasury is working with federal banking agencies to ensure that not all money transmitters are treated as high risk by banking institutions. Ensuring that these efforts are both domestic and international, the Treasury is working with the United Kingdom, the World Bank, and G-20.

    Anti-Money Laundering Money Service / Money Transmitters Combating the Financing of Terrorism

  • CFPB Finalizes Rule Defining Larger Participants Of The International Money Transfer Market

    Consumer Finance

    On September 23, the CFPB issued a Final Rule that defines which nonbank covered persons are designated “larger participants” for purposes of the international money transfer market. In particular, this rule, which finalizes a January 2014 proposed rule, defines an entity as a larger participant if it has at least one million aggregate annual international money transfers. The final rule will be effective December 1, 2014. In addition, the Final Rule defines an international money transfer market to cover certain electronic transfers of funds sent by nonbanks that are international money transfer providers. These transfers must be requested by a sender in a State to be sent to a designated recipient in a foreign country. While the Final Rule’s definitions are modeled in part on the definitions of “remittance transfer” and related terms in the Electronic Fund Transfer Act (EFTA) and its implementing regulation, Regulation E, there are some substantive differences. For example, transfers of $15 or less can be ‘‘international money transfers’’ but not “remittance transfers.” The CFPB provides a procedure for a person to dispute whether it qualifies as a larger participant in the international money transfer market and also asserts that there are only approximately 10 potential larger participants that qualify as small businesses.

    CFPB EFTA Money Service / Money Transmitters

  • FinCEN Rules Regulations on Money Services Businesses Do Not Apply to ISOs and Exempt Payment Processors

    Fintech

    On August 27, FinCEN issued FIN-2014-R009, an administrative ruling clarifying that Independent Sales Organizations (“ISOs”) and exempt payment processors are not money transmitters subject to Bank Secrecy Act (“BSA”) regulations applicable to Money Services Businesses (“MSBs”). Under BSA MSB regulations, the term “money transmitter” applies to any person that provides money transmission services or otherwise engages in the transfer of funds. The term “money transmission services” includes the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means. Applying these standards, FinCEN determined that BSA MSB regulations do not apply to an ISO, so long as it: (i) merely solicits merchants to offer them the credit and debit card processing services of two counterparties; and (ii) does not take possession or control of merchant funds at any point. However, FinCEN concluded that BSA MSB regulations will apply to a payment processor unless the payment processor qualifies for the payment processor exemption established by 31 CFR § 1010.100(ff)(5)(ii)(B) and clarified by FIN-2013-R002. Under this exemption, BSA MSB regulations do not apply to a payment processor, so long as it: (i) facilitates the purchase of goods or services, or the payment of bills for goods or services (other than money transmission itself); (ii) operates through clearance and settlement systems that admit only BSA-regulated financial institutions; (iii) provides its services pursuant to a formal agreement; and (iv) the agreement itself is at a minimum with the seller or creditor that provides the goods or services and receives the funds. For a copy of the ruling, please see: Application of Money Services Business Regulations to a Company Acting as an Independent Sales Organization and Payment Processor.

    FinCEN Bank Secrecy Act Money Service / Money Transmitters

  • Kansas Bank Commissioner Issues Virtual Currency Guidance

    Fintech

    On June 6, the Kansas Office of State Bank Commissioner (OSBC) issued guidance on the regulatory treatment of virtual currencies under the Kansas Money Transmitter Act (KMTA). The guidance focuses on money transmission activities involving decentralized cryptocurrencies, such as Bitcoin. The guidance states that cryptocurrencies in their current form are not covered by the KMTA because they do not fall within the definition of “money”—no cryptocurrency is currently authorized or adopted by any governmental entity as part of its currency—or “monetary value”—there is no recognized standard of value or set value for a single unit of a cryptocurrency. The guidance explains that since the KMTA does not apply to transmission of decentralized cryptocurrencies, an entity engaged solely in the transmission of such currency is not required to obtain a money transmitter license. The guidance adds that, if transmission of virtual currency includes the involvement of sovereign currency in a transaction, it may be considered money transmission depending on how the transaction is organized. The guidance provides several examples of common types of transactions involving cryptocurrency and whether the KMTA applies to each, and outlines for cryptocurrency businesses that conduct money transmission, and entities engaged in money transmission, actions necessary to comply with state law, including licensing.

    Digital Assets Money Service / Money Transmitters Virtual Currency Cryptocurrency

  • House Passes Financial Services Bills

    Fintech

    On May 6, the U.S. House of Representatives passed by voice vote three financial services bills: (i) H.R. 2672, which would require the CFPB to allow individuals and businesses to apply to have an area designated as “rural” for purposes of exemptions to the CFPB mortgage rules; (ii) H.R. 3329, which would require the Federal Reserve Board to allow bank holding companies and savings and loan holding companies with assets of less than $1 billion to incur higher amounts of debt when acquiring other banks than are allowed for larger holding companies—the current asset ceiling for that special allowance is $500 million and applies only to bank holding companies; and (iii) H.R. 4386, which would permit FinCEN, in fulfilling its responsibility to supervise registered money services businesses (MSBs), to rely on state agency examinations of MSBs that provide international remittance transfer services and other non-bank financial institutions such as gaming establishments and jewel merchants.

    CFPB Mortgage Origination FinCEN Money Service / Money Transmitters U.S. House

  • Maryland Adds Training, Disclosure Requirements For Money Transmitters

    Fintech

    On May 5, Maryland Governor Martin O’Malley signed HB 723, which requires state licensed money transmitters to (i) provide on transmittal forms a clear, concise, and conspicuous fraud warning that includes a toll-free telephone number for individuals to call to report fraud or suspected fraud; (ii) provide annual training to agents related to financial abuse and financial exploitation of elders; and (iii) allow an individual to voluntarily be disqualified from sending or receiving money transmissions in the state for a specified period of time. The changes, which take effect October 1, 2014, do not apply to a licensee or an agent that engages (i) in selling or issuing stored value devices, traveler’s checks, or money orders, or providing bill payer services, as long as the licensee or agent does not engage in any other business regulated under the money transmission law; or (ii) in the business of money transmission solely through the Internet.

    Money Service / Money Transmitters Licensing Elder Financial Exploitation

  • FinCEN Issues Five Rulings On Application Of BSA Regulations To Certain Activities

    Fintech

    On April 29, FinCEN issued five rulings in response to companies who sought clarification regarding whether their company is a money service business under the BSA. In FIN-2014-R006, FinCEN determined that a company that operates an online real-time deposit, settlement, and payment services platform for banks, businesses, and consumers is considered a money transmitter, not a provider of prepaid access, and should be registered as a money services business under BSA regulations. In two other rulings—FIN-2014-R004 and FIN-2014-R005— FinCEN clarified the exemption from the money transmitter definition for persons that accept and transmit funds “only integral to the sale of goods or the provision of services, other than money transmission services.” FinCEN determined that the escrow services at issue in FIN-2014-R004 and the transaction management services at issue in FIN-2014-R005 fit within that exemption because the acceptance and transmission of funds in these cases is not a separate and discrete service in addition to the underlying service, but instead is a necessary and integral part of the service itself. Therefore, these companies are not considered to be money transmitters subject to registration. FinCEN determined in FIN-2014-R007 that a company that rents computer systems used to mine virtual currencies is not a money transmitter. Finally, in FIN-2014-R008, FinCEN determined that although the company, which uses armored cars to facilitate the exchange of coins and cash, does not qualify for the “armored car” exemption in the money transmitter definition, it is still not considered a money transmitter. FinCEN stated that the transportation of currency and/or coin of certain denominations from the company’s vault to the customer’s location and the return transportation of currency and/or coin in the exact amount of the change provided to the company’s own vault does not constitute the acceptance of value from one person and the transportation of such value to another person or location.

    FinCEN Bank Secrecy Act Money Service / Money Transmitters Escrow Virtual Currency

  • FinCEN Announces Enforcement Action Over MSB's Currency Transaction Reporting

    Fintech

    On April 24, FinCEN released an assessment of civil money penalty against a Florida money services business (MSB) and its owner for failing to comply with the Bank Secrecy Act’s program, reporting, and recordkeeping requirements. FinCEN determined that since at least 2008, the MSB, which operated as both an independent check casher and as a foreign currency exchange dealer, willfully violated the BSA by failing to register with FinCEN and failing to develop and implement an effective AML program. Specifically, FinCEN found that the MSB lacked adequate AML programs to verify the identities of persons conducting transactions, to monitor for suspicious activities, to identify currency transactions exceeding $10,000, and to ensure that the MSB filed the required currency transaction reports (CTRs) in a timely manner. According to FinCEN, the MSB also failed to implement internal controls sufficient for creating and retaining adequate BSA records related to currency exchange, and its owner and compliance officer failed to conduct a BSA/AML risk assessment. As a result of the compliance deficiencies, FinCEN determined the MSB failed to file, or failed to timely file CTRs on $4.5 million worth of transactions. The MSB and its owner admitted to these determinations and agreed to pay a $10,000 penalty.

    Anti-Money Laundering FinCEN Money Service / Money Transmitters

  • CFPB Proposes Remittance Rule Amendments

    Fintech

    On April 15, the CFPB issued a proposed rule and request for comment to extend a temporary exception to Regulation E’s requirement that remittance transfer providers disclose certain fees and exchange rates to consumers. Pursuant to Regulation E, as amended to implement section 1073 of the Dodd-Frank Act, insured depository institutions are permitted to estimate certain third-party fees and exchange rates in connection with a remittance transfer until July 21, 2015, provided the transfer is sent from the sender’s account with the institution, and the institution is unable to determine the exact amount of the fees and rates due to circumstances outside of the institution’s control. The CFPB is proposing to exercise its statutory authority to extend this exception for an additional five years, until July 21, 2020. The agency explained that, based on its outreach to insured institutions and consumer groups, allowing the initial temporary exception to lapse would negatively affect the ability of insured institutions to send remittance transfers. Comments on the proposed rule are due within 30 days of its publication in the Federal Register.

    The proposed rule also includes several clarifications and technical corrections to the CFPB’s final remittance rule and official commentary, which were subsequently amended or delayed—including in August 2012 and January 2013—leading to a May 2013 revised final rule. In this latest round of proposed amendments, the CFPB is seeking to address concerns about the remittance rule’s applicability to U.S. military installations abroad. Because the rule does not expressly address transfers to such installations, the CFPB now seeks (i) comments on whether to treat locations on U.S. military installations abroad as being located within a State or a foreign country for the purposes of the rule, (ii) data on the relative number of transfers sent to and from individuals and/or accounts located on U.S. military installations abroad, and (iii) comments on the appropriateness of extending any clarification regarding U.S. military installations to other U.S. government installations abroad, such as U.S. diplomatic missions.

    With respect to transfers from accounts (as defined under Regulation E), the CFPB is also proposing amendments to make clear that whether a transfer is for personal, family, or household purposes—and thus, whether the transfer could be a remittance transfer subject to the rule—is determined by ascertaining the purpose for which the account was established, rather than the purpose of the particular transfer. The proposed amendments would therefore clarify that the rule does not apply to, e.g., transfers from an account that was established as a business or commercial account or an account owned by a business entity. In addition, the proposed rule seeks to clarify that faxes are considered writings for purposes of the remittance rule, and that, in certain circumstances, a remittance transfer provider may give oral disclosures after receiving a written remittance inquiry from a consumer. The CFPB is also proposing to revise the rule’s error resolution requirements, including with regard to errors based on the sender’s provision of incorrect or insufficient information. Specifically, the proposed amendment would clarify that, where such errors occur, the remittance transfer provider may not deduct its own fee from the amount refunded or applied towards a new transfer.

    CFPB Dodd-Frank EFTA Remittance Money Service / Money Transmitters Agency Rule-Making & Guidance

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